The State v. Butler
| Decision Date | 26 May 1914 |
| Parties | THE STATE v. ALBERT G. BUTLER, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. William M. Kinsey Judge.
Affirmed.
Frederick A. Mayhall and Fauntleroy, Cullen & Hay for appellant.
(1) The court erred in allowing the witness Mosby, who witnessed the shooting, to state to the jury that in his opinion deceased had no idea of even hurting defendant. Under the guise of introducing a conversation with the defendant, the witness was permitted to repeat statements he had made in the presence of the defendant and to give to the jury his opinion as to the conduct of the deceased (which he had witnessed) at the time the shooting occurred. This was grievous error, and such has been the express holding of this court upon a similar state of facts. State v. Foley, 144 Mo. 600; State v. Glahn, 97 Mo. 694. Under such circumstances the defendant should not be held responsible for the statements of a third party. Gibbons v. Territory, 115 P. 129; People v. Morton, 139 Cal. 719; State v. Robinson, 51 La. Ann. 694; Brown v State, 78 Miss. 637; Low v. State, 108 Tenn 127; Lawson v. State, 20 Ala. 65; Rolfe v. Rolfe, 10 Ga. 143; Moore v. Smith, 14 S. & R. 388; Vail v. Strong, 10 Vt. 457; Mattlocks v. Lyman, 16 Vt. 119; Comm. v. Kenney, 12 Met. 237; Wiedeman v. Walpole, 20 B. 534, 539. Under the circumstances in proof in this case the defendant was not charged with any duty to speak and hence no presumption can be indulged that he assented to what the witness said. Rubber Co. v. Rothery, 107 N.Y. 310, 1 Am. St. 822; Veile v. Judson, 82 N.Y. 32; State v. Glahn, 97 Mo. 694. (2) The remarks of counsel referred to herein are condemned by a long line of decisions of this court. State v. Webb, 253 Mo. 302; State v. Hyde, 234 Mo. 200; State v. Hess, 240 Mo. 160; State v. Baker, 246 Mo. 376; State v. Clapper, 203 Mo. 553; State v. King, 174 Mo. 647; State v. Spivey, 191 Mo. 112; State v. Young, 99 Mo. 666; State v. Jackson, 95 Mo. 623; State v. Fischer, 124 Mo. 460; State v. Bobbst, 131 Mo. 328.
John T. Barker, Attorney-General, and Thomas J. Higgs, Assistant Attorney-General, for the State.
(1) The defendant alleged error in allowing the witness Mosby to state to the jury a conversation in which witness, Mosby, said: "He had no idea of hurting him," contending that such admission was error in that the witness was permitted to express his opinion as to the conduct of the deceased (which he had witnessed) at the time of the shooting. In support of this contention appellant has cited the cases of State v. Foley, 144 Mo. 600, and State v. Glahn, 97 Mo. 694. In the case of State v. Foley, the statement admitted in evidence was that of a witness by the name of Land as to a conversation had with the defendant while he, the defendant, was a prisoner in jail and at a time about two months after the homicide. The witness, Land, was permitted in the trial to detail a conversation which contained opinions formed by Land from the evidence before the coroner's jury, and to much of which defendant made no reply. Against the protest of the prisoner the witness assured the prisoner of his conviction of guilt and summed up, by way of argument, each and every damaging circumstance tending to show the defendant guilty. The facts in the Foley case are entirely at variance with the facts in the case at bar. The decision of the court was to the effect that a lengthy narration of accusations to the defendant in custody without a denial should not be admitted in evidence. The Foley case has been considered by this court and cited with approval to support cases where statements and accusations were made to the defendant while under arrest and to which defendant did not reply, but remained silent. Under these circumstances it has been held that the silence of the defendant should not be considered an admission. State v. Ethridge, 188 Mo. 358. State v. Glahn, 97 Mo. 694, relied upon by the appellant, is not in point, for there was no response to the statement as made by the witness, and although made in the presence of the defendant, it was not such a statement as called for action or reply. In other words, the silence of the defendant was no evidence against him, under these circumstances. In the case at bar the statement of the witness, Mosby, did call for a reply and was a direct accusation that the appellant shot the deceased without provocation, and even though it did not call for a reply, the appellant made the statement, "Lord, Lord, what have I done," and did not remain silent as in the case of State v. Glahn. The statement of the witness was admissible as part of the res gestae. Kelly's Crim. Law and Prac. (3 Ed.), sec. 277; State v. Walker, 78 Mo. 386; State v. Elkins, 101 Mo. 351; State v. Dunkan, 116 Mo. 288; State v. Lockett, 168 Mo. 485; State v. Baker, 209 Mo. 450; State v. Kelleher, 201 Mo. 614; State v. McKenzie, 228 Mo. 399; State v. Kaizer, 124 Mo. 641; State v. Jacobs, 133 Mo.App. 184. Voluntary statements and admissions of the defendant to third persons when not a part of the res gestae are admissible in evidence. State v. White, 189 Mo. 351; State v. Wilkins, 221 Mo. 445; State v. Witherspoon, 231 Mo. 721. When statements of the court are admissible in evidence the whole conversations are admissible as evidence. 12 Cyc. 426. A statement made direct to the defendant when not under arrest, charging the commission of a crime, is admissible, even though there be no response. A failure to deny the accusation is a tacit admission of guilt. State v. Walker, 78 Mo. 388; People v. McCrea, 32 Cal. 98; State v. Reed, 62 Mo. 128; Newton v. State, 39 Ala. 523. A confession or admission may be implied by silence or acquiescence of the prisoner when statements are made in his presence and hearing relative to a fact within his knowledge implicating the defendant with a crime. State v. Watson, 13 Mo. 30; State v. Shannon, 33 Mo. 596; State v. Miller, 49 Mo. 505; State v. Hamilton, 55 Mo. 520; State v. Walker, 78 Mo. 380; State v. Talmage, 107 Mo. 567; State v. Lehman, 182 Mo. 424. We are inclined to be of the opinion that this conversation is admissible, both as a part of the res gestae and on the theory that it was a statement or accusation to which the defendant made a reply which would be of probative value to indicate to the jury an assent to the statement made by Mosby. (2) Interference with counsel in his argument is discretionary with the trial court and the appellate court will not review such discretion unless it appears that the rights of the prisoner were actually prejudiced. State v. Hamilton, 55 Mo. 520; State v. Hibler, 149 Mo. 484; State v. Allen, 45 W.Va. 65; Inman v. State, 72 Ga. 269; Combs v. State, 75 Ind. 215; Ford v. State, 34 Ark. 649; State v. Turner, 36 S.C. 534. Courts are slow to reverse judgments on account of improper remarks of attorneys, especially as in this case where the proof is clear, because in such cases a verdict of guilty would have been returned regardless of the improper remarks. State v. Dietz, 235 Mo. 332; State v. Harvey, 214 Mo. 403; State v. Church, 199 Mo. 605; State v. Hibber, 149 Mo. 478; State v. Sumner, 143 Mo. 220; State v. Dusenberg, 112 Mo. 277; Sec. 5115, R. S. 1909; State v. Emery, 79 Mo. 463. As a general rule the withdrawal of the objectionable remarks of the prosecuting attorney, either by himself or by the court, or a direction to disregard them, is deemed to have removed the prejudice and cured the error. State v. Gartrell, 174 Mo. 489; State v. McMullen, 170 Mo. 608; State v. Wright, 141 Mo. 333; State v. Hack, 118 Mo. 92; State v. Gibbs, 10 Mont. 213; Dunlap v. United States, 165 U.S. 486; People v. Benham, 160 N.Y. 402.
On June 11, 1913, in the circuit court of the city of St. Louis, defendant was convicted of murder in the second degree and his punishment assessed at ten years in the penitentiary. This is the second appeal in the case. The judgment upon the first trial was, by this court, upon appeal, reversed, on account of certain errors not now involved. The facts disclosed by the present record are in substance the same as disclosed by the record of the first trial and are fully set forth in the former opinion by this court in 247 Mo. 685. It is, therefore, unnecessary to restate the same here.
As grounds for a reversal of the present judgment, appellant contends that error was committed: (1) in the admission of certain testimony given by witness Mosby; (2) by improper remarks made by one of the State's counsel in making the closing argument to the jury.
I. Witness Mosby testified upon the part of the State that he saw the shooting and heard some quarreling between defendant and others in front of the Walsh home just prior to the shooting; that he walked down the sidewalk beyond the Walsh premises and upon hearing a "scream" turned around and looked back toward the Walsh home and saw defendant walking backwards away from the Walsh home and saw deceased going toward defendant with one arm extended, but did not see the other hand; that when deceased had approached within four or five feet of defendant, defendant drew a revolver from his pocket and shot deceased. After the shot was fired, defendant ran diagonally across an adjoining lawn and down the street until he was stopped by a man named Brown. Mosby went up to where defendant was standing and, in the language of the witness, the following occurred: ...
To continue reading
Request your trial